RSCAS 2020/62
Robert Schuman Centre for Advanced Studies
European Networking and Training for National Competition
Enforcers (ENTraNCE)
European Networking and Training for National
Competition Enforcers ENTraNCE for Judges 2019
Selected Case Notes
European University Institute
Robert Schuman Centre for Advanced Studies
European Networking and Training for National Competition Enforcers
(ENTraNCE)
European Networking and Training for National Competition
Enforcers ENTraNCE for Judges 2019
Selected Case Notes
Edited by Pier Luigi Parcu and Giorgio Monti
BY 4.0) International license. If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper series and number, the year and the publisher.
ISSN 1028-3625
© Edited by Pier Luigi Parcu and Giorgio Monti, 2020
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European Networking and Training for National Competition Enforcers (ENTraNCE for Judges)
This series of working papers is published in the context of ENTraNCE for Judges, a training programme for national judges involved in EU competition law. The training is organised by the RSCAS, with the financial support of the DG Competition of the European Commission. In the context of the training programme, selected judges from different EU Member States attend both online and residential training activities in Florence. Each year the training focusses on a different aspect of competition law enforcement that is relevant to the national judiciaries.
Information concerning the ENTraNCE for Judges training programme can be found at: http://www.eui.eu/Projects/ENTRANCE/Home.aspx
Each working paper includes the case notes written by the national judges participating in one edition of ENTraNCE for Judges. In the context of the training activities, each judge is requested to summarise and to comment on a national judgment that is related to the field of competition law. The working paper thus aims to increase the understanding of the challenges faced by the national judiciaries in enforcing national and EU competition in the context of the decentralised regime of competition law enforcement, which was introduced by Reg. 1/2003.
Abstract
This working paper includes a collection of case notes written by those national judges who attended the European Networking and Training for National Competition Enforcers (ENTraNCE Judges 2019). The training programme was organised by RSCAS between November 2018 and October 2019, with the financial contribution of the DG Competition of the European Commission. The case notes included in the working paper summarise judgments from different EU Member States that relate to diverse aspects of competition law enforcement. The working paper thus aims to increase understanding of the challenges that are faced by the national judiciaries in enforcing national and EU competition in the context of the decentralised regime of competition law enforcement that was introduced by Reg. 1/2003.
Keywords
Introduction ... 1
Scope of Application of Competition Law ... 7
Goda Ambrasaite – Balyniene, Court of Appeal of Lithuania ... 8
Ewa Stefanska, Supreme Court of Poland ... 11
Eric Mille, Brussels Commercial Court ... 14
Horizontal Agreements... 18
Judit, Banu Zsoltné Szabó (Hungary, Budapest-Capital Regional Court) ... 19
Gerald Ehgartner, Federal Finance Court, Austria ... 23
Maja Valusnig, Zagreb Administrative Court ... 25
Vertical Agreements ... 27
Sigita Rudėnaitė, Supreme Court of Lithuania ... 28
Renate Schohaj, Austrian Federal Finance Court ... 31
Doina Visan, Bucharest Court of Appel ... 35
Procedural Aspects in Competition Law Enforcement ... 38
Nina Korjus, Finnish Market Court ... 39
Markus Mattila, Finnish Market Court ... 42
Abuse of Dominance ... 47
Fátima Reis Silva, Lisbon Court of Appeal... 48
Adrian Engman, Swedish Patent and Market Court of Appeal ... 51
Marius Cristian Ispas, Bucharest Court of Appeal ... 54
Private Enforcement of Competition Law ... 59
Magda Teppey, Ljubljana Court of Appeal ... 60
Jussi Karttunen, Finnish Market Court ... 63
Emanuela Germano & Gabriella Ratti, Andrea Piletta Massaro, Turin Court of Appeal ... 67
Birgit Herregodts, Brussels Commercial Court... 71
1
Introduction
The cases annotated by the judges raise a wide range of legal and economic issues. The major theme that arises from these annotations is the increased use of the case law of the ECJ by national judges. If we compare these annotations with those of the first ENTRANCE course in 2011, we see that judges appear more familiar with EU case law and integrate it into their decisions. In addition some of the cases discussed below reveal that a number of disputes raise issues about the relationship between competition law and rules of national law and that at times the courts struggle with delineating the precise relationship between EU and national law. Below, we summarise each of the case notes so as to provide the reader with a quick guide to the main issues that are discussed by the judges.
Scope of Application of Competition Law
Judge Goda Ambrasaite discusses litigation in Lihuania concerning the fixing of notaries’ fees by the Lithuanian Chamber of Notaires. The National Competition Authority considered that there had been an infringement of competition law insofar as the decision of the association of undertakings restricted price competition. On appeal, however, the Vlinius Regional Administrative Court quashed the decision of the competition authority. The appeal hinged on whether the Chamber of Notaries was acting as an undertaking or whether it was merely implementing state regulation. On the facts the court held that the ultimate power to set fees was with the Ministry of Justice. Thus, all that the Chamber did was provide recommendations. The court’s finding is in line with the ECJ’s case-law (Arduino and Cipolla).1
However, just because the conduct is not an infringement of Article 101 TFEU, it remains arguable that the fees are an unjustified restriction on the freedom to provide services and thus a further challenge might be brought on the basis of Article 56 TFEU. The only difficulty is that this challenge can only be brought by private action in the national courts or by the Commission starting infringement proceedings. Compared to public enforcer by a competition authority, the former route is costly and the Commission does not initiate a large amount of proceedings. It would be desirable, in these contexts if more national competition authorities had advocacy powers to challenge state regulation that restricts competition.
Judge Ewa Stefanska discusses a case where the Polish Competition Authority dismissed a complain about exploitative abuse. The allegation was that a collecting society was licensing non-dramatic works at high fees and the agreement with the copyright holders gave them relatively small royalties. Combined these two acts gave the collecting society a larger revenue than if markets were competitive. However, the competition authority dismissed the complaint because the remuneration rates were set by the Copyright Commission and not by the collecting society. As with the case discussed above, the question was the extent to which the Copyright Commission was in fact setting the fees or whether it just rubber-stamped the recommendation of the collecting society. The court’s view was that the collecting society was in fact the party who was setting the fees. It also noted that there had been an appeal to the Administrative Court which had quashed the decision of the Copyright Commission. On these facts, it was held that the Polish competition authority was not justified in dropping the case. This is an interesting judgment in two respects. First, as Judge Stefanska notes, it displays the complex interaction between intellectual property and competition law, secondly it is worth reflecting on the impact of the ECJ’s judgment in MEO on cases like this.2 In MEO the Portuguese collecting society set licensing fees
and one factor that the court took into account was that if there was disagreement between it and a licensee then the fee would be set by arbitration. Here instead the decision on the fees could be
1
Cipolla and others, Joined cases C-94/04 and C-202/04, EU:C:2006:758, Arduino, C-35/99, EU:C:2002:97
2
2 Robert Schuman Centre for Advanced Studies Working Papers challenged ex ante once the Copyright Commission approved the fees. This reduces the economic power of the collecting society and so leads one to wonder if it holds a dominant position at all.
Judge Eric Mille discusses a decision about the rules set by the International Equestrian Federation (IEF), which organizes equestrian events and regulates the sport on behalf of national associations. The Belgian competition authority condemned a rule whereby an athlete who participated in a competition organized by another federation would face a temporary ban from participating in events organized by the IEF. It was felt this foreclosed market access to organisers of competing events, contrary to Article 101 TFEU. On appeal the issue arose whether the IEF was an association of undertakings whose rules might be justified by public interest considerations (along the lines of Meca Medina).3 The national court
recognized a number of public policy justifications that the IEF could invoke (i.e. the health of the horses and riders, the enforcement of anti-doping rules and it seems also timetabling considerations). However, it held that the IEF had not applied its rules in a proportionate manner and had favoured its events at the expense of those of other organisers. Based on the MOTOE judgment the court recalled that a sports regulator who is also in the market for the organization of the sports has a special responsibility not to foreclose market access to others who wish to organize competing sporting events.4 It found that the
complainants in this case had agreed to abide by the animal welfare and anti-doping rules of the IEF so excluding athletes from the events organized by competitors was disproportionate.
Horizontal Agreements
Judge Judit Szabó Zsoltné Banu discusses horizontal agreements to exchange information. The Hungarian competition authority condemned an agreement among contact lens sellers to conduct market research: they appointed a firm to conduct research on their behalf and each seller would provide it with information about sales. The agreement came to light when one of the participants made a leniency application and the competition authority condemned the agreement. On appeal, however, the decision was quashed because the competition authority had not examined the effects of the information exchange on the market. This judgment tracks closely the ECJ case-law as well as the Guidelines on Horizontal Agreements. One aspect that does not seem to have been considered is the nature of the information that the undertakings received from the marketing agency – this indeed is crucial to understand if the information exchange facilitates collusion or not.
Judge Gerald Ehgatner discusses a joint venture agreement whereby the two parents had tried to divide up the geographical market for their product (gloves for medical procedures). The question on appeal was whether the market division could be considered an ancillary restraint – subsidiary to the main agreement but necessary for its operation. The court, rightly, would have none of this. It is obvious that the clause that has been condemned here is harmful to competition. That one of the parties would not have entered into the joint venture without the agreement to segment markets is irrelevant for the puporses of Article 101(1). Perhaps, but this point does not seem to have been litigated, the parties could have tried to argue for an exemption under Article 101(3), but even here one would have struggled to explain why such a strong competition preventing restriction was necessary for the joint venture.
Judge Maja Valusnig discusses collusion in the market for bus transport that took place in 2011, before Croatia’s accession to the EU. This looked like a simple collusion case. However, there has been a long judicial history with the Constitutional Court upholding appeals by the applicant. In the latest round reported here, the Administrative Court quashed the decision of the competition authority because the application of competition law appeared to clash with the legislation on road transport which appears to tolerate some cooperation among transport undertakings. This raises interesting issues about what it
3
Meca-Medina and Majcen v Commission, Case C-519/04 P, EU:C:2006:492
4
European University Institute 3 is that the national law allows and how such rules can be compatible both with competition law but also with rules about the internal market. Arguably, unless national law requires cooperation among bus companies then there is nothing that national law can do to immunize an agreement by bus companies to share markets or fix fees.5 It looks as if after this third trial in front of the Administrative Court, that
the competition authority has not yet taken the case up again – given the lapse of time it may no longer be in the public interest to pursue such matters, but the Croatian parliament may want to review the national laws for compliance with EU Law, now that it has become a member state.
Vertical Agreements
Judge Sigita Rudėnaitė discusses a vertical agreement between Bionuovs, a producer of biofuel, and Vilniaus Energija, a major supplier of heating in the Vilnius region. This was an exclusive purchase agreement for a 5-year term and concerns were raised because of the high purchase price which was passed down to consumers. The buyer defended itself by saying that the supply contract was agreed following a public procurement procedure and only Bionuovos had participated. The tender had been reviewed by the Public Procurement Office and found it complaint with procurement law. As the learned judge explains in her case note this judgment is important because the courts agree that compliance with public procurement law is not a guarantee that the agreement is compatible with EU competition law – here the duration of the exclusivity agreement is problematic. As she explains in the future, the design of a tender should take into account the risk that the contract may restrict competition. The second important feature is how much of the litigation was spent on market definition, to try and examine if the agreement fell within the scope of the Block Exemption Regulation for Vertical Agreements. However, it might have first been useful to explore what the theory of harm was and whether the agreement was restrictive by object or effect.
Judge Renate Schohaj discusses what looks like a hub and spoke cartel orchestrated by Spar (a leading supermarket with 30% market share) which agreed prices with its suppliers of dairy products. The deal was designed to allow Spar to raise retail prices and in order to ensure that it could do so without losing sales, it asked suppliers to set recommended prices and to communicate these also to its rivals. A system was put in place to monitor retail prices. Unsurprisingly the Austrian competition authority condemned Spar for creating an anticompetitive arrangement. This is one of those cases where an appeal was unwise. While the cartel court as set the fine at EUR 3 million the supreme cartel court raised it to EUR 30 million! The judgment of the court is interesting for three reasons: first the court is sensitive to the superior bargaining power that Spar has – even if it is not dominant in the market, suppliers of dairy products are always in a weaker position with respect to supermarkets and are likely to agree to any demand so as to guarantee sales. This explains why the fine is imposed only on Spar. Second, the case is interesting because the court condemns both the vertical aspect of the agreement (as RPM) and the possible horizontal manifestations of this (i.e. collusion among retailers). Some might question the wisdom of this because usually the RPM is designed as a means to monitor a horizontal agreement but under EU Law there is a concern about RPM independently of the horizontal impact. Finally the learned judge notes that the system for fixing fines in Austria is based on a different set of principles than that used by the Commission, which appears to facilitate the imposition of higher fines: the system seems to score high on deterrence but low on predictability.
Judge Doina Visan also looks at an RPM agreement in the market for certain car supplies (e.g. wheel rims and antitheft devices). The agreement restricts intra-brand competition (auto dealers cannot compete with each other on price) and was duly condemned by the Romanian competition authority. The case is interesting for it reveals the detailed account that the national court gives to EU case-law to support its finding that the agreement may be condemned as a restriction by object. This is yet another
5
4 Robert Schuman Centre for Advanced Studies Working Papers case where the national court finds it useful to have regard also to the guidelines on vertical restraint (the judgment annotated by Sigita Rudėnaitė discussed above being another one where the guidelines are cited).
Procedural Aspects
Judges Nina Korjus and Markus Mettila both discuss the same case concerning collusion in the market for power transmission line supply. As a result of a leniency application only one party was pursued for a cartel alleged to have taken place between 2004 and 2011. The issue at stake here is about the limitation period. The court found that there was no evidence of a cartel after 2009, and this was fatal because then the case was brought out of time by the national competition authority. The limitation period begins to run when the infringement ceases, but when is that time? On the fact at hand, collusion was by way of bid-rigging, as a result of which the two parties agreed in advance on who would win certain tenders issued by the purchasing authorities. These contracts take a number of years to complete and payment is normally made at the end. The legal question then became this: when you have a bid-rigging agreement, does the agreement end when the bids are sent to the purchasing authority or when the winner completes the work in question? If the latter then the action brought by the competition authority would be on time. The national court reviewed the case-law of the ECJ extensively and found that no judgment gave a clear answer to this question. As a result it made a reference for a preliminary ruling to the ECJ, which is still pending.6 As judge Mattola notes it may be that the answer also depends on the nature of
the contract – one might distinguish a tender with other kinds of agreements.
Abuse of Dominance
Judge Fátima Reis Silva discusses the MEO judgment.7 Of particular interest here is the judge’s
discussion of the procedural issues at play here – in particular the role of judicial review in cases where the competition authority decides not to pursue a case and the importance of balancing the rights of the parties with the analysis of the NCA about the probability of conviction. On the facts, and greatly aided by the ECJ’s judgment the national court found it easy to dismiss the appeal as it was unlikely that the dominant undertaking abused its dominant position. As the judge notes the ECN plus Directive may make cases such as these more rare because national competition authorities have greater freedom to set priorities.8
Judge Adrian Engman discusses a case about refusals to deal in high frequency trading markets. High frequency trading works best if the trader’s computers are located near the stock exchange, so the time lag is shortest. The dominant trader, Nasdaq, had refused to give access to premises located near to its exchange to a would-be rival who complained that this served to exclude competition. The case however was unsuccessful. At first instance the Market Court held that Nasdaq was free not to give access. Instead the Patent and Market Court of Appeal found that the party who had brought the complaint was not as efficient as Nasdaq and so even if they had been given premises next to it this would not have made a difference. Other judges went further and said that here was no essential facility to begin with. The majority seems to misunderstand the as efficient competitor test, which is a hypothetical standard. In cases of rebates of predatory pricing the test asks if the prices set by the dominant firm would exclude from the market a non-dominant firm who is as efficient as the dominant undertaking. But this is an exercise that is based on constructing a hypothetical rival with the same efficiency as the dominant firm.
6
Case C-450/19, Kilpailu- ja kuluttajavirasto v Eltel Group Oy ja Eltel Networks Oy (pending). 7
Above n.2. 8
Directive (EU) 2019/1 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market [2019] OJ L11/3.
European University Institute 5 The test reveals that there is an abuse because the market is distorted. It is not easy to see how this test can be applied to a refusal to deal which is based on whether access is indispensable. Moreover, the purpose of Article 102 is to allow rivals to compete on the merits or to try to do so – the precise abilities of the party bringing the complaint is irrelevant.
Judge Maruis Cristian Ispas brings us an important case at the borderline between public procurement and competition law (which should be read alongside the case annotated by Judge Sigita Rudėnaitė). Here the dominant company (Hoffman La Roche) made the best bid but one of the competitors argued that there was a margin squeeze: it was buying drugs from Hoffman La Roche for resale and it said that the price Hoffman La Roche charged it was higher than the price that Hoffman La Roche quoted in the tender. As a result the complainant was unable to compete to supply the purchasing authority. The court gave a very thorough judgment – it determined that there was no dominance, and even if dominance was established there was no abuse as the interest of the purchaser is to get the best price. Moreover, the notion of margin squeeze is not applicable in a case like this. It was also important that the court noted that the law requires a court to review competition law issues even if the tender complies with public procurement law. As the learned judge notes in his comments there is an interest in the state being able to select the cheapest provider. At the same time there appeared no competition risks: i.e. in the long term there was no foreclosure. Moreover, as he rightly notes in other margin squeeze cases the sale is of a component where the dominant firm knows that the buyer is competing downstream, while here Hoffman La Roche is selling the same drugs to the rival as it is to the purchasing authority.
Damages Actions
Judge Magda Teppey discusses the difficulties in calculating damages for lost profits. The dominant firm had excluded the competitor from the market for the provision of internet services. How does one calculate lost profits? The learned judge reveals how as the case got appealed, different judges approached damages calculation differently. The aspect that troubled the judges was how to construct the right counterfactual to determine what profits the plaintiff would have made. The difficulty was that there were other competitors as well as the plaintiff so the issue was to determine what proportion of sales would have been made by the plaintiff. The Practical Guide for Quantifying Harm In Actions For Damages Based on Breaches of Article 101 or 102, produced by the Commission in 2013, is an instrument that can help courts in identifying widely accepted and consolidated methods to define countefactuals and effectively estimate antitrust damages.
Judge Jussi Karttunen discusses the asphalt cartel. The legal question in this case arose because after the cartel had been found there had been several corporate reorganisations of the undertakings concerned: shares in the infringers were bought by another company and the original firms were put in liquidation. Thus, by the time the municipalities brought several follow-on actions for damages, the defendants stated that they were not the corporations that had infringed the law and the plaintiffs should lodge their claims against the firms being liquidated. This would have meant that the plaintiffs would receive no damages. The question for the courts was then whether the liability in damages could be traced to the new companies, by applying the economic continuity test that is available in cases of public enforcement also to actions for damages. As the learned judge explains, under Finnish civil law the liability rules may allow the plaintiff to sue the acquiring firm only in limited circumstances. In contrast, under EU Law, guided by the principle of effectiveness the ECJ ruled that the liability should be fairly extensive: when all the shares of the undertaking that participated in the cartel are acquired by other companies which continue with their commercial activities and dissolve the former companies, then the acquiring companies are liable.9 The question that this case gives rise to is whether the judgment may
have any follow-on effects on Finnish civil law: the legal system now has a special rule for competition
9
6 Robert Schuman Centre for Advanced Studies Working Papers law offences only and it may be that as a matter of fairness all tort claimants should be free to seek damages in similar cases.
IP and Competition Law
Judges Emanuela Germano, Gabriella Ratti and Dr Andrea Piletta Massaro discuss a judgment of the Turin Court of Appeal. The defendant is the holder of patents which the claimant considered were either invalid, or if valid, essential for it to enter the market for digital TV and so the defendant had a duty to license them. The defendants counterclaimed that the plaintiffs were using the patented technology in breach of their rights. At first instance, the court sided with the defendants – it found that the patents were valid and that there were other technologies that could have been used to enter the market. The remedy was a recovery of profits that the plaintiff made at the defendant’s expense. The Court of Appeal held that some of the patents were invalid, but affirmed the other findings. As the learned judges note, an important feature of this case is the use of experts to aid in calculating damages, something which may perhaps assist in cases like that annotated by judge Teppey noted above. Moreover, the judgment confirms the narrow scope of the rules on essential facilities.
Judge Birgit Herregodts discusses litigation surrounding a licensing agreement. The licensor sought to rescind the agreement on the grounds that the licensee did not comply with some contractual obligations. Several legal proceedings were issued to terminate the contract. However, during the litigation on interim proceedings, the judge raised the point ex officio that the licensee’s breach was their decision to make sales outside the territory that had been allocated. Accordingly the court had to consider that the agreement in question possibly infringed EU competition law, Article 101 forbidding agreements to allocate markets. This was not a point that the parties had considered at all, but it is of major significance because it would likely render the contract void. Final judgment is pending, but the case reveals clearly the importance of parties to ensure that agreements are designed in a manner consistent with EU competition law: should the court find that the licensing agreement is automatically void as a result of the offending clause this will lead to more litigation. The licensor will not be able to insist that there was a breach by the licensee since the contract is invalid. Complex restitution issues may arise if litigation continues. It is submitted that the parties had better settle this out of court, revise their agreement so that the licensee is free to make passive sales out of their territory rather than continue with legal proceedings.
Conclusion
As the reader will have seen from this overview, national courts are much more confident with EU Law: this may indicate that training courses are a useful means to familiarize judges with the tools needed to solve disputes. The cases also reveal the complexities that arise in damages actions and how more efforts are needed beyond the damages directive to clarify the rules applicable for private enforcement. Issues like quantification are likely to continue to cause difficulties that continuous guidance from the Commission and help from external experts, particularly applied economists, may well help address effectively.
European University Institute 7
8 Robert Schuman Centre for Advanced Studies Working Papers
Goda Ambrasaite – Balyniene, Court of Appeal of Lithuania
Judgment of the Vilnius Regional Administrative Court of 19th February, 2019, Case No. eI-286-1063/2019
By its decision of 26 April, 2018, the Competition Council of the Republic of Lithuania found that the Lithuanian Chamber of Notaries and the members of its Praesidium had concluded an anti-competitive agreement by setting the amount of notary’s fees and agreeing upon their calculation procedure. The Council imposed a €88,400 fine on the Lithuanian Chamber of Notaries, and fines ranging from €100 to €20,800 on eight members of the Praesidium for the infringements of the Law on Competition and the Treaty on the Functioning of the European Union (TFEU).
In Lithuania, notary’s fees are approved by the order of the Minister of Justice after consulting the Lithuanian Chamber of Notaries. The amounts of these fees are fixed in various forms: fixed price, price range, or a percentage, depending on the value of the transaction. As the Council has established, from 88 different notary’s fees for the performance of 24 notarial acts, a fixed amount was established by the Minister of Justice, while, in other cases, the amount of the fee was determined by the interval method, indicating the minimum and maximum amount of the notary's fee.
Having conducted an investigation, the Council concluded that the Lithuanian Chamber of Notaries and eight members of the Praesidium had adopted decisions, thereby setting the notaries’ fees’ calculation procedure, which was stricter if compared to that envisaged by order of the Minister. These decisions restricted the ability of notaries to apply lower notaries’ fees and to offer more favourable ones to consumers10.
The Council concluded that: “having adopted the decisions which set notaries’ fees, the Lithuanian Chamber of Notaries and the members of the Praesidium prevented all notaries from choosing a fee that was within the limits of set ranges and its calculation independently. The freedom of notaries’ economic activity, as well as that of price competition, were therefore restricted, and this resulted in increased fees for consumers”.
The Lithuanian Chamber of Notaries and the members of its Praesidium have submitted a claim to the Vilnius Regional Administrative Court. The claim was based, inter alia, on the following arguments:
1. Article 101 of the TFEU could not be applied to the activities of the Lithuanian Chamber of Notaris, and its Praesidium, as the markets for notarial services in EU member states do not constitute a common market, due to the peculiarities of notarial acts and national regulation in every state. Notarial activities are not harmonised within the EU, and member states are free to choose the model of legal regulation;
2. The functions performed by notaries are in the public interest, and the notary essentially carries out public functions. In order for public functions performed by notaries to be properly realized, notaries are allowed to compete only on the quality of their services, but not on prices;
3. The Explanations of the Praesidium, which were investigated by the Council, relate to the implementation of the statutory function of the unification of notarial practice, which is necessary in order to ensure the proper performance of the public functions that are assigned to notaries and to guarantee a uniform standard of performance of notarial duties. Unification of the practice of notaries is carried out in such a way that interpretations do not go beyond the limits of the law.
10
For instance, the order envisages that notaries could charge from 0.2 to 0.3 per cent of the value of assets, but no less than €14.48, and no more than €144.81 for the approval of mortgage on assets. However, in 2017, the Praesidium issued a clarification stating that notaries have to multiply the fee by the number of items that are being mortgaged, although the order itself does not contain such a requirement.
European University Institute 9 In addition, the decisions taken by the Praesidium cannot change or replace the legal regulation that was established by the Ministry of Justice;
4. Sanctions against the alleged anti-competitive agreement (cartel) were applied to both the Lithuanian Chamber of Notaries and the members of its Praesidium. The same decision of the Presidium was thus unjustifiably qualified as being made up of two violations - the decision of the association itself, and the agreement of the members of the association. The status of the persons accused is also unclear from the contested decision: i.e., whether members of the Praesidium should be held to be liable as independent notaries, or as members of the Praesidium, as a self-governing body.
5. The contested decision is based on the false presumption that the acts of the Chamber of Notaries was aimed at harmonizing notarial practice must be regarded as being a restriction of competition “by object”.
The Council disagreed with the claim by stating that the applicants' position on the inability to compete on prices is based solely on the doctrinal interpretation of the concept of the Latin notary, which is not in fact reflected in the legal regulations of the Republic of Lithuania. No legal act states that notaries are not economic entities and that they cannot compete with each other on prices. The Council pointed out that, according to the case law of the ECJ, the concept of an “undertaking” in EU competition law is based on
the functional approach, i. e., the person's compliance with the characteristics of the
“undertaking” is determined not by its legal form, but by the nature of the activity it carries out. Following this practice, the liberal professions, on whose activities the State has imposed certain constraints. must also be regarded as “undertakings”.Vilnius Regional Administrative Court, on 19th February, 2019, upheld a claim from the Lithuanian Chamber of Notaries and the members of its Praesidium in full, annulling an earlier decision by the Competition Council.
The Court has agreed with the Council that, according to the case law of the ECJ (and also to the case law of the Supreme Administrative Court of Lithuania), the fact that an entity is established under public law, as well as the fact that it offers intellectual services, the provision of which requires a license or other authorization, does not in itself prevent the application of EU competition law rules. In the context of competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. However, the rules on competition do not apply to any activity which, by its nature, its aim and the rules to which it is subject, does not belong to the sphere of economic activity, or which is connected with the exercise of the powers of a public authority.
In the opinion of the Court, the treatment of the members of the Praesidium of the Lithuanian Chamber of Notaries as “undertakings” under competition law would be justified only in a case where there was an agreement between notaries, as independent economic entities, on price fixing in a particular market / territory. In this case, the applicants (notaries), against whom the contested decision was adopted, acted not as economic entities - notaries acting independently in the market, but as members of the Praesidium of the governing body of the Chamber of Notaries. In providing guidance to notaries, the Chamber of Notaries had performed its public duty of unifying the notarial practice, as set out directly in the Law on the Notarial Profession. The Chamber of Notaries was therefore not to be equated with an “economic undertaking”, as defined in the Law on Competition, and the decision by the Council should be acknowledged as being legally void due to this factor alone.
The Court has also pointed out that the maximum values indicated in the Explanations of the Praesidium were set within the ranges specified, without exceeding them, while the Council did not substantiate with significant evidence why the maximum amounts could not be set out. In the opinion of the Court, the maximum amounts of notaries’ fees, which are set out in the Explanations, are aimed at the equal application of rates. In this way, the Explanations are justifiably aimed at notaries, who are
10 Robert Schuman Centre for Advanced Studies Working Papers competing on the quality of services, the highest standards of which are thus also guaranteed, but they are not competing on prices.
The Court further noted that the Ministry of Justice had sole discretion in establishing notaries’ fees, so it was essentially able to reject the tariffs that were suggested by the Chamber of Notaries, or to recommend tariffs that it deemed to be more appropriate. The case contained evidence that the Minister of Justice had actually approved some tariffs that were different to those suggested by the Chamber of Notaries. In other words, the Minister of Justice had not taken into account the comments and suggestions that had been made by the Chamber of Notaries.
The Court noted that only those agreements of the Chamber of Notaries (the Praesidium), whose actual objective would be to restrict competition, could be recognized as infringing competition law (Article 5 (1) of the Competition Act, Article 101 TFEU). In the opinion of the Court, the assessment of the content of the Explanations of the Praesidium, from an anti-competitive point of view, does not justify the conclusion that their adoption might have had adverse effects on competition which, in this case, was contrary to what the Council itself states. The Council was required to assess, since the alleged infringement of competition law could not be seen from the outset as being so obvious that it would have an automatically negative impact on the market. From the evidence gathered in the case, it was established that the adoption of the Explanations fully justifies the legitimate purpose of their preparation, i.e., to adjust (unify) the abstract notarial fees.
The Court also ruled that by imposing fines on both the Lithuanian Chamber of Notaries and the members of its Praesidium, the principle of non bis in idem was violated.
The judgment of the Vilnius Regional Administrative Court is now being appealed before the Supreme Administrative Court of Lithuania.
Comment
This is the most recent case involving competition law issues. It raises some interesting questions: Do the characterizations of the office of the notary, and the legal status of the Chamber of Notaries qualify as exception to the competition law established by the ECJ?
Were the explanations given by the ECJ in the Wouters case11, and the state’s action defense properly
applied by the Court? And, in this case:
Was the Council obliged to additionally assess whether the Explanations of the Praesidium might have had adverse effects on competition12?
11
Case C-309/99 12
The Council insists that, in this respect, the Court has deviated from the established practice of the ECJ that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered to be so likely to have negative effects, in particular, on the price, quantity or quality of goods and/or services, that it may be considered redundant to prove that they have actual effects on the market.
European University Institute 11
Ewa Stefanska, Supreme Court of Poland
Names of the parties:
Plaintiffs: Elżbieta C.-G. "Radio - Puls" w P., Radio Bielsko sp. z o.o. w B.-B., Radio WA - MA S.A. w O.
Other participants: Radio Vanessa sp. z o.o. w R., Wojciech J. - Radio Alfa w K., Stowarzyszenie Autorów ZAiKS
Defendant: The President of the Competition and Consumer Protection Office
Name of the Court: The Supreme Court of Poland Date of the judgment: 2nd April 2009
Type of proceedings: Review of the decision of the National Competition Authority Reference: III SK 19/08
Note on the case
In the decision issued on 17th September, 2002, the President of the Competition and Consumer
Protection Office discontinued the proceedings initiated by the submission by the plaintiffs of the application in the case concerning the Association of Authors (ZAIKS) on competition-restricting practices that were based on an abuse of a dominant position by:
(A) the imposition of onerous terms for license agreements, which brought unjustified benefits to ZAIKS by setting the amount of an author's royalties for the broadcasting of non-dramatic pieces of music in the amount of 5% of the revenues received by the broadcaster in connection with the broadcasting activity, in particular, from advertising revenues;
(B) charging excessively high rates of copyright remuneration for the exploitation of non-dramatic pieces of music for which the copyrights are administrated by ZAIKS (the first point of decision).
The authority has not found a violation of Article 8 of the Act of 15th December 2000, on competition and consumer protection (the Act of 2007 is currently in force) by ZAIKS’ refusal to conclude a license agreement with the plaintiffs (the second point of decision).
In justification of the decision, the President of the Competition and Consumer Protection Office clarified that the competence to approve the rates of copyright remuneration is with the Copyright Commission, but not with ZAIKS. It is not therefore possible to accuse ZAIKS of imposing unfair prices or onerous conditions in the case of prices charged that result from tables that are approved by the Copyright Commission. The Copyright Commission doesn’t have the character of an entrepreneur, so the authority has no competence to challenge the amounts of the rates of copyright remuneration for the exploitation of non-dramatic pieces of music. Furthermore, by the refusal to conclude a licensing agreement with the plaintiffs, ZAIKS did not violate the public interest, and it wasn thus not a competition-restricting practice.
The plaintiffs appealed the decision to the Competition and Consumer Protection Court and the First Instance Court annulled the decision. The Court pointed out that in approving the rates of copyright remuneration, the Copyright Commission issues a decision that is addressed to the organization for the
12 Robert Schuman Centre for Advanced Studies Working Papers collective management of copyright that had submitted the remuneration tables for approval. However, the decision contains those norms that are, in fact, general and abstract. The Copyright Commission isn’t bound by any factors that are able to provide guidance when approving, or refusing to approve, a specific table. Moreover, the Commission isn’t competent to question the rates that are submitted in the remuneration tables. In particular, the Commission isn’t entitled to apply Article 8 of the Act of 15th December 2000, on competition and consumer protection, but ZAIKS is competent to issue such a decision. So, there was no justification for the discontinuation of the proceeding by the President of the Competition and Consumer Protection Office.
The authority and ZAIKS appealed the judgment to the Second Instance Court. Both appeals were dismissed by the judgment of the Court of Appeals in Warsaw, which was issued on 17th October 2007. The Court pointed out that the fundamental meaning in this case has the legal nature of the remuneration tables that are approved by the Commission, and the fact of binding by them the organization for the collective management of copyright, as well as the licensees. It clarified that the organization for the collective management of copyright couldn’t act in the case that there was a lack of the approved remuneration tables, because it wouldn’t be able to carry out a statutory duty and apply the principles of equal treatment. The tables approved by the decision of the Copyright Commission are binding on ZAIKS. If they aren’t approved, the tables are treated as a non-binding offer. In the analyzed case, the decision of the Copyright Commission wasn’t final, because it had been annulled by the Administrative Court. This means that, at that moment, the remuneration tables had not been approved and did not bind the organization for the collective management of copyright and the licensees. So, the President of the Competition and Consumer Protection Office could recognize the substantive objections to the abuse of a dominant position by the organization for the collective management of copyright. The Court also clarified that ZAIKS is a non-profit organization, but it performs a paid activity. This means that the provision of Article 8 of the Act of 15th December 2000, on Competition and Consumer Protection applies to the organizations for tje collective management of copyright.
The President of the Competition and Consumer Protection Office appealed the judgment to the Supreme Court, which in a decision of 2nd April 2009, dismissed the cassation complaint.
Conclusion
The Supreme Court pointed out that the provisions of the Act on Competition and Consumer Protection doesn’t violate the content of copyright, in particular, the authors’ exclusive right to use the work, dispose of it in all fields of exploitation, and to remuneration for the use of the work. The statute also does not violate the competence of the organizations for the collective management of copyright in the field of management and the protection of these rights. The Act on Competition and Consumer Protection applies to the commercialization of copyrights by concluding licensing agreements.
The Act does not apply to such provisions of contracts in which the subject is the determination by the author, or by another authorized entity, of the rules for the use of the work by a third party, conditions for the disposal of the right to the work, and the granting to the author of the right to remuneration. For example, applying the provisions of the Act to assess compliance with competition law. the provisions of the license agreement granting the licensee the exclusive right to use the work, are not allowed, since granting an exclusive license is the essence of the exclusive right to use the work. It is also not allowed to apply the provisions of the Act to a refusal by the author to grant a license to use the copyright. However, the application of the statute to the provisions of the license agreements regarding the amount of remuneration due to the author, or to another authorized entity, is allowed, because the amount of compensation for creative effort, or the financial risk that is related to the development of the work, are not the essence of the work’s copyright. The copyright law is limited only to granting the right to the entitleent to remuneration, without the reservation of exclusivity to him/her in determining the amount of this remuneration. Using his/her right, and the freedom to shape it, an author, or another authorized
European University Institute 13 entity, must move within the limits that are set by the provisions of competition law. They are thus not allowed to enter into prohibited price agreements, and thus the use of an excessively high price or a grossly low price.
The provisions of the Act are not applied to those restrictions of competition that are permitted under separate Acts. In accordance with the provisions of the law, the organization for the collective management of copyright is obliged to conclude a licensing agreement. It cannot, without valid reasons, refuse the permission to use the works within the limits of the management board. This obligation of the judiciary is understood to be the requirement for acceptance, if there are no objections to this, the offer to conclude a licensing agreement authorizing the use of the organization's repertoire at conditions that it defines, which are identical for all contractors, in particular, those resulting from the remuneration table that is approved by the Copyright Commission.
14 Robert Schuman Centre for Advanced Studies Working Papers
Eric Mille, Brussels Commercial Court
Appeal of a decision of the Belgian Competition Authority (hereafter, the BCA), dated 28th April, 2016, in a case opposing the International Equestrian Federation (hereafter, the IEF, the defendant in the First Instance) to the Global Champions’ League (hereafter, GCL) and Tops Trading Belgium (hereafter, TTB) companies (the claimants in the First Instance).
Summary of the facts of the dispute
The IEF is an association whose members are the national equestrian federations, and these bring together both athletes and horse owners. The IEF is therefore expanding its activities worldwide.
It sells broadcasting rights for equestrian competitions and enters into licensing and sponsorship agreements with third parties, such as competition organisers.
It also exercises regulatory powers, because oits agreement with the International Olympic Committee to be the sole international regulator for equestrian sport. As such, the IEF is the author of a general regulation for equestrian competitions.
In November 2012, the IEF General Assembly introduced a clause in its regulations stating that any participation by an athlete, horse or organiser in an event that is not approved by the IEF would prevent any participation within 6 months in any event that was approved by the IEF. This provision entered into force on 1 January 2013.
According to the IEF, the objective of this clause is the protection of the horses’ welfare and of the integrity of competitions (anti-doping), by limiting the number of competitions per year, through a calendar of those competitions that meet these objectives. However, GCL and TTB pointed out that the adoption of this clause coincided with the growth of the IEF's commercial activities and the doubling of its commercial and marketing expenses and revenues.
Since 2006, the TTB has promoted international jumping competitions under the so-called Global Champions’ Tour (GCT). This GCT was approved each year by the IEF.
GCL is a company that was created by TTB in June 2015, to organize and promote the so-called GCL event.
This event is a new competition that is comprised of 15 international jumping competitions bringing together 15 teams, each of which is composed of 4 riders. It is expected that the GCL will be organized in parallel with the GCT, during the GCT’s competitions’ programmes, as an competition that is additional to the GCT competition, but in which the same riders, horses and organisers would appear.
A regulation of the GCL event was adopted in February 2015, requiring the participation of each of the 15 teams in each of the 15 events that were organized during the season.
Summary of the judicial proceedings
In 2013 and 2014, TTB and GCL sought IEF accreditation for the GCL event. but without success, so they could not organise this event for the seasons 2014 and 2015.
They therefore brought a complaint against the litigious clause of the IEF’s regulation that was before the BCA in June 2015, in view of obtaining the nullification of this clause for breaching of Article 101,1 of the EU Treaty. In parallel, they requested that the BCA order interim measures to suspend the litigious
European University Institute 15 clause and to prohibit the IEF from sanctioning athletes, horses and organizers who participate in the GCL event, even though it is not authorized by the IEF, and provided that they comply with the IEF’s provisions regarding the horses’ welfare and the integrity of the competition (anti-doping), in order to enable the organisation of the GCL event for the 2016 season, and until the BCA rules on the merits of the complaint.
The BCA ordered the requested suspension in July 2015.
In August 2015, the IEF brought an action for the annulment of this decision before the Brussels Court of Appeal.
The Decision of the Court
To justify interim measures, the litigious facts must prima facie be eligible for an infringement of competition law.
By its judgment of 18 July 2006, in the Meca Medina case (C-519/04), the CJEU confirmed that sports regulations cannot be excluded from the scope of competition law if it complies with the conditions for the application of Articles 101 and 102 TFEU.
According to the CJEU, in the light of the Community's objectives, sport is a matter of EU law, provided that it implies an economic activity within the meaning of Article 2 TFEU, i.e., any activity consisting of offering goods or services on a given market (C-49/07, Motoe, 1st July, 2008).
In the case at hand, the IEF performs economic activities as an organiser of equestrian competitions, this being the relevant criterion for regarding this entity to be an "undertaking" within the meaning of the TEUE. In addition, the national federations which are members of the IEF, also organise such events, so that the IEF is, in addition, an association of undertakings within the same meaning.
The Possible Violation of Article 101(1) TFEU.
Article 101,1 TFEU prohibits all agreements between undertakings, decisions by associations of undertakings, and concerted practices which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and which may affect trade between member states. In the case at hand, the litigious clause is a decision adopted by an association of undertakings.
According to a CJEU decision of 11 September 2014, the concept of the restriction of competition by object can only be applied to certain types of agreements between undertakings which create such a level of anti-competition that the examination of the effects of these agreements is not even necessary.
In the present case, the Court noticed that the BCA’s contested decision does not establish the existence of a restriction by object of the litigious clause.
If the analysis of the content of the agreement considered does not reveal a sufficient degree of harm to competition by its object, and its effects should be examined in order to determine whether they prevent, restrict, or significantly distort competition (cf. Allianz Hungária Biztositó and Others - C-32/11, CB / College, C-67/13 P, Dole Food and Dole Fresh Fruit Europe / College, C-286/13 P).
The effect of the litigious clause is that riders and horse owners are excluded from all competitions that are accredited by the IEF for 6 months, in principle, but this exclusion lasts for 12 to 18 months when the exclusion takes place at the end of a calendar year. In addition, as far as the GCL event organizers are concerned, this implies that the athletes and horse owners will not participate in this event. Prima facie, the clause is therefore restrictive by its effects on athletes, horse owners and the claimants, and this restriction affects economic operators the European market. Moreover, since the IEF
16 Robert Schuman Centre for Advanced Studies Working Papers and the national equestrian federations promote horse races and act as undertakings, the litigious clause is prima facie likely to distort competition to their advantage.
The compatibility of the litigious clause with the TFEU depends on (i) the legitimacy of its objectives,
(ii) whether its restrictive effects on competition are inherent in such legitimate objectives, and
(ii)
(iii) whether these restrictive effects are proportionate to the said legitimate objectives (Mecca Medina case -C-519/04).
According to Advocate General Kokott, in the Motoe case (C-49/07), providing the unified game rules of a sport, as well as integrating competitions in this sport into a specific timetable are legitimate objectives of sport regulations that may justify restrictive effects on competition. However, a regulatory authority which also organises competitions cannot give priority to the latter and to those of other independent organisers.
The BCA holds the view that the litigious clause does not have clearly defined objectives, since the IEF had initially put forward in, 2012, that these objectives were for the protection of horses’ welfare and the integrity of the sport, whereas it subsequently argued that these objectives are further comprised of the preservation of the equestrian events’ calendar, in order to prevent the proliferation of non-accredited events and of the competitions’ formats.
The Court, however, holds the view that calendar objectives are admissible as being legitimate, according to the CJEU, and that, in addition, a restrictive provision that meets both legitimate and other objectives is not prohibited. In the case at hand, it has therefore not been demonstrated, according to the Court, that the IEF does not pursue legitimate objectives, as it had originally claimed.
The CJEU acknowledged that legitimate objectives, such as participants’ welfare, sport integrity and a coherent organisational framework for competitions, may justify a regulation based on which a sport’s regulatory body refuses its agreement for the organisation of a competition, and that the restrictive effect of this refusal on the athletes' freedom of action must be considered to be inherent in such legitimate objectives (Meca Medina case C-519/04 – the considered legitimate objective being, in this case, sport integrity that has led to anti-doping rules).
However, the Court notes that, according to the European Commission's 2001 decision in the FIA case, a regulatory body which also performs commercial activities must be particularly attentive to conflicts of interest, and must ensure that the regulation it provides influences competition only to the extent that it is strictly justified by the pursuit of legitimate interests.
In the case at hand, the Court underlined that the claimants had agreed to comply with the IEF’sprovisions regarding animal welfare and the integrity of sport, and introduced provisions in the GCL regulation, according to which the IEF regulation on horse welfare and anti-doping is enforceable for participants at the GCL event. Consequently, the Court considers that, in the presence of such commitments, it is not inherent to the legitimate objectives that are pursued by the IEF to exclude participation in approved events by horses and athletes who participate in the non- approved GCL event, even temporarily.
According to the Court, the BCA's decision rightfully considers that the litigious clause is disproportionate to the legitimate objectives that are pursued by the IEF, since more proportionate measures could have been taken to achieve, notably, the preservation of the horses’ welfare, such as an exclusion from the events of thos that refuse to comply with the provision of the IEF regarding this welfare.
European University Institute 17 The Court further noticed that other national competition authorities, after having initiated proceedings regarding similar restrictive clauses, terminated them only provided that the concerned sports federations mitigated their restrictive effects, or abandoned the problematic clause.
The Court underlines that the IEF did not invoke the benefit of this Article, nor had it demonstrated that an exemption was justified. In particular, it did not demonstrate that the litigious clause would be indispensable for improvement of the production or distribution of products, or in promoting technical or economic progress, and that it would not give the IEF the opportunity to ban competition.
For the foregoing reasons, the Court considers that the BCA made no error of assessment in considering that the litigious clause is likely to constitute a breach of Article 101, 1 TFEU.
Personal comment
The Court of Appeal, in its decision, basically applied CJEU case-law.
In particular, it considers that a sport organisation may act as an undertaking and be subjected to competition law, provided that it performs economic activities and underlines that, in such situations, it must be especially careful in elaborating regulations in order that, even though such regulations pursue legitimate objectives, they do not unnecessarily distort competition between this sport organisation and its competitors on the market. Such a regulation, which hasrestrictive effects on this market, must therefore be as neutral as possible on competition, and must these restrictive effects to the minimum that is required by its legitimate objectives.
18 Robert Schuman Centre for Advanced Studies Working Papers
European University Institute 19
Judit, Banu Zsoltné Szabó (Hungary, Budapest-Capital Regional Court)
Case No.: Judgment of the Curia of Hungary No. Kfv.II.37.110/2017/13.
Substance of the case: Restrictive agreements on the market for contact lenses, in breach of Article 101
of the Treaty on the Functioning of the European Union (TFEU)
Facts
Between 2003 and 2010, the market for contact lenses was concentrated and there were 5 leading participants in the market. Four participant undertakings, CooperVision Kft. (CooperVision), FOTEX-OFOTÉRT Kft. (FOTEX-FOTEX-OFOTÉRT), Johnson & Johnson Kft. (a division of Vision Care) (Johnson & Johnson) and Novartis Hungária Kft. (Novartis) covered more than 80% of the market. Under the market for contact lenses, not only contact lenses but also the related care products, are understood. From 2000, the market for contact lenses showed a strong increase, and it was stabilized in 2006, however, the number of products sp;d increased until 2008.
The market research company, Kleffmann & Partners Kft. (Kleffmann), wanted to broaden the scope of its activities so, in 2003, it made an offer for market research to Novartis, Johnson & Johnson and FOTEX-OFOTÉRT, separately. Kleffmann undertook negotiations with the undertakings separately, and after bilateral negotiations, on 20th October 2003. agreements were concluded on market research
services between Kleffmann and Novartis, Kleffmann and FOTEX-OFOTÉRT, and Kleffmann and Johnson & Johnson. Based on the suggestion of Novartis, FOTEX-OFOTÉRT and Johnson & Johnson, Kleffmann also involved the predecessor of CooperVision in the research, which took part in it from 23rd October 2003.
According to the parties to the agreements, at the time of the conclusion of the market research agreements there were not sufficient data on the Hungarian market for contact lenses and related care products, so they accepted Kleffmann’s offer. Kleffmann originally offered tracking research, but the parties ordered black-box research instead. During the black-box research, the market participants provided their own data on product distribution so that an independent market researcher could present the main trends in the market by aggregating and structuring the data that was collected from them.
The bilateral market research agreements were concluded year-to-year between Kleffmann and the contact lens producers and distributors with the same content. Based on the agreements, the contact lens producers and distributors provided data on their own distribution in quarterly breakdowns relating to the priorly determined market segments. The distribution data are data on the distribution of 16 product groups within Hungary, as well as on the sales volumes and the resulting revenue therefrom. Based on these data, Kleffmann calculated the average price or, more precisely, the revenue per product.
Regarding the second quarter of 2010. Johnson & Johnson did not provide its data to Kleffmann, because its legal department raised concerns about participation in the provision of data. Johnson & Johnson submitted a complaint on the agreement to the Hungarian Competition Authority (Competition Authority) on 2nd August 2010. [according to Art. 78/A. § (2) a) of the Act on the Prohibition of Unfair
Trading Practices and Unfair Competition (the Competition Act), revealing the activities that are detailed in Point 4. of 78/A. § (2) a)], as well as a request for exemption from a fine. The Competition Authority initiated a competition supervision proceeding on 7th December 2010, against CooperVison,
FOTEX-OFOTÉRT, Johnson & Johnson, Novartis and Kleffmann. The Competition Authority, in its Decision No Vj/96-310/2010 dated 13th June, 2014, found that the undertakings - using the market
research - had committed an infringement by exchanging business information between companies, including data on their recent income and the quantities of their products, and these could not be obtained
